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2018 DIGILAW 276 (JHR)

Narayan Prasad Khedia v. State of Jharkhand

2018-02-01

ANUBHA RAWAT CHOUDHARY

body2018
ORDER : Heard the learned counsel for the parties. 2. The writ petition has been filed by the petitioners challenging the impugned order dated 23.3.2011 passed by the Land Reforms, Deputy Collector, Chas in Misc. Case No. 1/2010-2011 as contained in Annexure- 7 series of the writ petition. 3. Counsel for the petitioner has argued at length and at the end of the arguments the counsel for the petitioner has confined his writ petition only on the point of jurisdiction by submitting that the impugned order dated 23.3.2011 passed by the Land Reforms, Deputy Collector, Chas in Misc. Case No. 1/2010-2011 is wholly without jurisdiction and in gross violation of principles of natural justice and fair play. 4. It is submitted that the said authority has been pleased to cancel the jamabandi run in the name of the father of the petitioners for more than 20 years without hearing the petitioners. The specific case of the petitioners is that Land Reforms Deputy Collector has no jurisdiction to cancel the jamabandi which is specifically vested upon Circle Officer by the statute namely Bihar Tenant's Holding (Maintenance of Record) Act, 1973. 5. The facts of the case as submitted by the counsel for the petitioner is as under :- (a) The property involved in this case is plot No. 4776, Khata No. 505, mouza Chas, Thana No. 30, area 49 decimal. (b) Vide order dated 23.7.1982 mutation case No. 256(III)/1982-83 passed by the Circle Officer, Chas jamabandi was created in the name of Gopiram Khedia (father of petitioner No.1) and Gouri Shankar Khedia (father of petitioner No.2) and subsequently jamabandi No. 682/13 and 971/25 was opened in the name of the petitioners. (c) Thereafter the petitioners have been continuously paying rent after mutation. (d) Vide petition dated 15.02.2010 as contained in Annexure-6 series an application was filed before the respondent No. 3 for cancellation of jamabandi running in the name of the petitioners. (e) Pursuant to the said petition dated 15.02.2010, the respondent No. 3 vide letter No. 116 dated 24.04.2010 directed the Circle Officer to make an enquiry and submit a report. (f) Accordingly the Circle Officer, Chas initiated proceeding namely Miscellaneous Case No. 1/2010- 2011, Issued notice to the parties and after hearing the parties he submitted a report vide letter dated 24.7.2010 before the respondent No. 3 for passing an appropriate order. (f) Accordingly the Circle Officer, Chas initiated proceeding namely Miscellaneous Case No. 1/2010- 2011, Issued notice to the parties and after hearing the parties he submitted a report vide letter dated 24.7.2010 before the respondent No. 3 for passing an appropriate order. The Circle Officer observed in the report that as the jamabandi was running in the name of the petitioners since long, the aggrieved party may approach the Court for relief. (g) Thereafter the respondent No. 3 passed order dated 23.3.2011 cancelling jamabandi running in the name of the petitioners being jamabandi numbers 682/13 and 971/25. 6. It is submitted by the petitioner that the complaint dated 15.2.2010 was wrongly filed before the respondent No. 3 and submits that if any person has grievance in connection with jamabandi in the name of the petitioners, the application ought to have been filed before the Circle Onker, Chas and not before the Land Reforms, Deputy Collector, Chas (respondent No.3). He submits that this particular application was processed by the Land Reforms Deputy Collector, Chas and Circle Officer was ultimately directed to conduct an enquiry and submit a report. The Circle Officer in his turn submitted his report and pursuant to the report of the Circle Officer. The learned Land Reforms Deputy Collector passed impugned order dated 23.3.2011 without hearing the parties and without issuing any notice in the matter. •The petitioners assailed this order dated 23.03.2011 passed by the Land Reforms Deputy Collector being wholly without jurisdiction. The counsel referred to the judgment passed by Hon'ble Patna High Court in CWJC No. 748/1981 dated 01.9.1987. The other point as argued by the counsel for the petitioners is that the impugned order has been passed in complete disregards to the principles of natural justice inasmuch as no opportunity of hearing was given to the petitioners by the respondent No.3 before passing the impugned order. Counsel for the petitioners has referred to Sections 14, 15 and 16 of the aforesaid Act to demonstrate that Land Reforms Deputy Collector being an appellate authority in connection with any order which might be passed by the Circle Officer in relation to the mutation accordingly the said authority could not have exercised the original jurisdiction which is vested in the Circle Officer under the statute. He submits that power of exercised by the Land Reforms Deputy Collector is wrongful exercise of power and accordingly the impugned order is nullity in the eye of law. He, however, submits that allegation has been made against the petitioners regarding creation of jamabandi and submits that the same must be enquired into and order must be passed by the competent authority, i.e., the Circle Officer, Chas. He further submits that the application which filed before the respondent No. 3 may be treated as application before the Circle Officer, Chas and he may be directed to dispose of the matter alter hearing the parties in accordance with law. 7. Counsel for the respondent on the other hand submits that even if the order passed by the learned Land Reforms Deputy Collector is without jurisdiction the petitioner should avail the alternative remedy which is available to the petitioner under Section 16 of the aforesaid Act before the Commissioner. 8. After hearing the counsel for the parties and after considering the facts and circumstances of this case this Court is inclined to set-aside the impugned order dated 23.3.2011 passed by the Land Reforms. Deputy Collector. Chas in Misc. Case No. 1/2010-2011 as contained in Annexure-7 series being wholly without jurisdiction and also having being passed without giving an opportunity of hearing to the petitioners. It has been held by the Hon'ble Patna High Court in CWJC No. 748/1981 dated 1.9.1987 at para 7 as follows : "It is a common ground that when the order of mutation is passed in favour of a person by the Circle Officer, the Deputy Collector is the appellate authority in relation to such an order. Obviously, therefore, the Land Reforms Deputy Collector could not have exercised its original jurisdiction to cancel the jamabandi if it was already entered in the name of the petitioner by an order of the Circle Officer, i.e. the authority subordinate to the Land Reforms Deputy Collector. It is now a well-settled principle of law that even as right decision by a wrong form is no decision in the eye of law." 9. On account of the undisputed fact that the Land Reforms. Deputy Collector. It is now a well-settled principle of law that even as right decision by a wrong form is no decision in the eye of law." 9. On account of the undisputed fact that the Land Reforms. Deputy Collector. Chas has passed the impugned' order without giving an opportunity of hearing to the petitioners and has no authority under law to cancel the jamabandi running in the name of the petitioners under the provisions of Bihar Tenant's Holding (Maintenance of Record) Act. 1973, this Court is inclined to entertain the writ petition in view of judgment passed by Hon'ble Supreme Court reported in (1998) 8 SCC 1 . It is useful to quote paras 14 and 15 of the said judgment for ready reference : "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. " 10. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. " 10. Under the facts and circumstances of the case, I allow this writ petition and set aside the impugned order dated 23.3.2011 passed by the Land Reforms, Deputy Collector, Chas in Misc. Case No. 1/2010-2011 with the direction to the Circle Officer Chas to treat the application, dated 15.02.2010 as contained in Annexure-6 series to the writ petition. as a petition for cancellation of jamabandi created in favour of the petitioners. The complainant, who are private parties in this writ petition undertake to appear before Circle Officer, Chas on 27.2.2018 along with the copy of this order including other documents. The petitioners are also directed to appear before the Circle Officer. Chas on the said date. On appearance of the parties on 27.2.2018 before the Circle Officer. Chas, the said authority is directed to dispose of the matter and pass an appropriate order in accordance with law after hearing the parties within the period of two weeks thereafter. It is made clear that this Court has not gone into the merits of the rival claims of the parties. 11. The writ petition is allowed with the aforesaid observations and directions. Petition allowed.